Gov.
Jennifer Granholm of Michigan recently called for state Rep. Rick Baxter to be
removed from office for
a July 7, 2005 Wall Street Journal column he co-authored with Hillsdale
professor Gary Wolfram. The commentary cited various publicly available measures
of Michigan’s economic activity, while criticizing the governor’s current policy
proposals, and it led her to assert, according to
the July 11 Detroit News, that writing the column for a national publication
was "treasonous to the state of Michigan."

Before
proceeding, however, I should first confess that Gary Wolfram and I are both
adjunct scholars of the Mackinac Center for Public Policy, and I have often
agreed with his writings. We have never met, however, and I hasten to add that I
am not now, nor have I ever been, in direct contact with him.

Treason is defined in Article 1,
Section 22 of the Michigan Constitution as follows: "Treason against the State
shall consist only in levying war against it or adhering to its enemies, giving
them aid and comfort." Since no one has ever been successfully prosecuted for
treason under the current Michigan Constitution, Michigan courts have given the
governor little guidance regarding the legal meaning of the terms in the treason
clause.

Perhaps Gov. Granholm envisions a
broad definition of "levying war" that includes a "trade war" with other states,
claiming that Rep. Baxter’s "treason" is therefore giving aid and comfort to
other states’ economies. Still, a review of cases
brought by Gov. Granholm in her previous position as attorney general of the
state of Michigan indicates that she did not enforce the "treason" clause of the
Michigan Constitution during her four years as the state’s chief prosecutor,
even though there were many critics of Michigan’s economy at that time. Many of
these critics were also outspoken opponents of the economic policies of her
predecessor, Gov. John Engler.

Despite
the lack of precedent at the state level, there have been at least 40
prosecutions for treason under the U.S. Constitution, and the federal courts’
interpretation of "treason" gives us some basis for understanding the proper
legal definition of the term. Article 3, Section 3 of the U.S. Constitution
states, "Treason against the United States shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and Comfort."
This is almost identical to the language in the Michigan Constitution, so state
courts would probably apply the federal standards to any prosecution for treason
under Michigan law.

Federal courts in practice have
interpreted the treason clause strictly, so that few prosecutions outside of
wartime settings have been successful. The most famous peacetime treason trial
was of Vice President Aaron Burr in 1807, and it resulted in his acquittal.
Politically motivated attempts to convict opponents of the Fugitive Slave Law of
1850 were also unsuccessful.

Treason is
the only crime defined in the U.S. Constitution, and for good reason. The
English Statute of Treasons, which was in effect in the 13 colonies prior to the
Declaration of Independence, had evolved into an instrument for suppressing
dissent against government policy and for punishing criticism of the king or
queen. The U.S. Supreme Court discussed this history in Cramer v. United States
(1945). In that decision, the Supreme Court found that historical materials from
the time the Constitution was written "show two kinds of dangers against
which the framers were concerned to guard the treason offense: (1) perversion by
established authority to repress peaceful political opposition; and (2)
conviction of the innocent as a result of perjury, passion, or inadequate
evidence." Indeed, English courts later interpreted the Statute of Treasons as
requiring not just words of opposition, but an act of rebellion.

Perhaps it
is not too seditious to suggest that this modern understanding of treason is the
right one, and that we can take comfort in knowing that the pre-Revolutionary
War Statute of Treasons no longer applies in America.

#####

Theodore
Bolema, an attorney and faculty member at the Central Michigan University
College of Business Administration, is an adjunct scholar of the Mackinac Center
for Public Policy, a research and educational institute headquartered in
Midland, Mich. Permission to reprint in whole or in part is hereby granted,
provided that the author and the Center are properly cited.